STATE OF OHIO v. JORDAN L. GRAUPMANN
C.A. CASE NO. 2013 CA 65
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
August 22, 2014
2014-Ohio-3637
T.C. NO. TRD1211371; (Criminal appeal from Municipal Court)
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 100 E. Third Street, Suite 400, Dayton, Ohio 45402
Attorney for Defendant-Appellant
OPINION
Rendered on the 22nd day of August, 2014.
FROELICH, P.J.
{¶ 1} Jordan Graupmann appeals from a judgment of the Fairborn Municipal Court, which found him guilty, on his guilty plea, of reckless operation of a
{¶ 2} On December 11, 2012, Graupmann backed out of a driveway in a residential neighborhood and struck a vehicle parked on the street. According to the police report, Graupmann left the scene “without making any notification” regarding the accident. The Fairborn Police Department investigated the incident and, on December 19, Graupmann was cited for improper backing, failure to stop after an accident, and operating a vehicle without a valid license.
{¶ 3} In the Fairborn Municipal Court, the matter was heard by a magistrate. On July 22, 2013, Graupmann pled guilty at a plea hearing to an amended charge (from the failure to stop after an accident) of reckless operation of a vehicle, in exchange for which the charges for improper backing and driving without a valid operator‘s license were dropped.
{¶ 4} The magistrate held a sentencing/restitution hearing on September 5, 2013. At the hearing, the owner of the damaged car, a 1999 Pontiac Grand Am, presented three estimates for the repairs, which totaled $2,761.27, $2,770.41, and $2,950.10. The owner also presented evidence, based on AutoTrader, that the value of the car was between approximately $2,600 and $5,900. Graupmann presented pictures of the vehicle, which was dented on the rear driver‘s side, and suggested that, considering the age and condition of the car, a damage award in the range requested by the owner “would be effectively totaling [the
{¶ 5} On September 9, 2013, the trial court adopted the magistrate‘s decision.1
{¶ 6} Graupmann did not file any objections within 14 days. On September 24, 2013 (the 19th day), he filed a motion to file objections out of time and the proposed objections themselves, which related to the amount of restitution awarded. In the objections, Graupmann argued that, according to the NADA Older Used Car Guide, the trade-in value of the damaged car was only $500-$800, that even in “clean” condition, the car would at most have a value of $2,875, and that the car was not in “clean” condition; none of this evidence was presented at the sentencing/restitution hearing.
{¶ 7} On October 2, 2013, the trial court overruled Graupmann‘s motion to file objections out of time. It based its decision on the language of
{¶ 8} In his first assignment of error on appeal, Graupmann contends that he should have been allowed to file his objections, because “a seeming miscommunication
{¶ 9} The question whether good cause has been shown for the extension of a filing deadline is within a trial court‘s discretion. See, e.g., Cincinnati v. Parker, 22 Ohio St.2d 209, 211, 259 N.E.2d 114 (1970); Whipple v. Warren Corr. Inst., 10th Dist. Franklin No. 09AP-253, 2009-Ohio-4841, ¶ 6, citing Johnson v. Univ. Hosp. Case Med. Ctr., 8th Dist. Cuyahoga No. 90960, 2009-Ohio-2119, ¶ 5; Falvey v. Falvey, 5th Dist. Fairfield No. 09-CA-0061, 2010-Ohio-2144, ¶ 21. We will not reverse a trial court‘s decision unless the court has abused its discretion. “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Lewis v. Lewis, 2d Dist. Greene No. 2013 CA 68, 2014-Ohio-958, ¶ 11.
{¶ 10} In this case, we cannot find that the trial court abused its discretion in concluding that Graupmann had not shown good cause for the untimeliness of his objections to the magistrate‘s decision. It appears that Graupmann had simply failed to pursue the matter within the time provided by
{¶ 11} The first assignment of error is overruled.
{¶ 12} In his second assignment of error, Graupmann argues that the amount of restitution awarded by the trial court was unreasonable and that the trial court did not consider his ability to pay restitution. Because Graupmann did not file timely objections or timely present the evidence he attached to his untimely objections, these issues are not properly before us. However, we will comment briefly on these arguments.
{¶ 13} With respect to Graupmann‘s argument that the amount of restitution was disproportionate to the value of the victim‘s car, we note that Graupmann did not present any evidence regarding the value of the victim‘s car at the hearing that was scheduled to examine this issue, although he did object to the amounts proposed by the victim. When Graupmann filed his motion to file objections out of time (with the proposed objections), he discussed values that were based on the NADA Older Used Car Guide, attaching a page that appeared to be from this guide. He also referenced his inability to take the car to a repair shop for an estimate, because it was not in his possession. Finally, Graupmann attached grainy, black-and-white copies of photographs depicting parts of the damaged car, which were intended to show its poor condition apart from the damage caused by the collision, but these copies are of such poor quality as to be of almost no value.
{¶ 14} A court must base an award of restitution on evidence that is in the record. State v. MacQuarrie, 2d Dist. Montgomery No. 22763, 2009-Ohio-2182, ¶ 7, citing State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). On the plea form, the magistrate
{¶ 15} Following the sentencing/restitution hearing, the magistrate reasonably credited the victim‘s print-outs from AutoTrader of the values of similar vehicles and his detailed, professionally-prepared estimates from three auto dealer collision shops as to the cost of the repairs. The magistrate awarded the lowest of these three amounts. The fact that Graupmann failed to present documentary or photographic evidence at the hearing on restitution to refute the victim‘s claimed damages did not constitute “good cause” for the court to provide him with another opportunity to do so.
{¶ 16} Graupmann also contends that the trial court erred in failing to consider his ability to pay the restitution award. He raises this argument for the first time on appeal; he did not raise his ability to pay at the sentencing/restitution hearing or in his proposed objections to the magistrate‘s decision.
{¶ 17}
{¶ 18} Graupmann correctly points out that, after his conviction, on November 1, 2013, the court found him to be indigent, based on his financial disclosure/affidavit of indigency, on which he claimed to have no income and no assets. However, a finding that a defendant is indigent for purposes of appointed counsel does not shield him from paying a financial sanction. See State v. Miller, 2d Dist. Clark App. 08CA0090, 2010-Ohio-4760, ¶ 39; State v. Twitty, 2d Dist. Montgomery No. 24296, 2011-Ohio-4725, ¶ 23. A defendant‘s ability to pay a financial sanction may be derived from consideration of information about the defendant‘s age, health, education, and work history. Ratliff at ¶ 12. At the sentencing/restitution hearing in this case, defense counsel stated that Graupmann had obtained a job at Meijer the previous week, earning minimum wage, and that he would be a full-time college student in January 2014. These assertions suggest that Graupmann had some means to pay restitution and that he was able to work.
{¶ 20} The judgment of the trial court will be affirmed.
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Betsy A. Deeds
Christopher B. Epley
Hon. Beth W. Root